JUDGMENT Tarun Agarwala, J.
1. The petitioner committed serious financial irregularities such as embezzlement of funds and interpolation of the records on the basis of which, the petitioner was placed under suspension on 16.6.1995. Subsequently, he was issued three chargesheets on 9.5.1996, 9.1.2002 and 6.6.2002. The petitioner did not submit any reply to these chargesheets denying the charges and instead through various letters asked for supplying of certain documents. The petitioner alleged that ultimately he was issued a show cause notice on 6.5.2003 and eventually, an order dated 6.11.2003 was passed terminating the services of the petitioner. The petitioner alleged that the order of termination was passed in gross violation of the principles of natural justice, inasmuch as, no enquiry was held nor any Inquiry Officer was appointed nor any evidence was led and since the charges was not proved and the petitioner was not given any opportunity of hearing, the impugned order, terminating the services of the petitioner, was violative of principles of natural justice. In support of his submission the petitioner has relied upon the following decisions :
i] 1992 [65] FLR 675 Uma Shanker Yadav v. The Registrar, Co-operative Societies and Ors.
ii] [2000] 1 UPLBEC 541, Subhash Chandra Sharma v. Managing Director and Anr.
[iii] [2002] 1 UPLBEC 775, Sukhbir Singh v. S.S.P., Agra and Ors.
[iv] [2003] 2 UPLBEC 1726 Asha Ram Verma and Ors. v. State of U.P. and Ors.
[v] JT 1995 [8] Secured Creditors 65 B.C. Chaturvedi v. Union of India and Ors.
[vi] 2004[l] ESC 615, Gurucharan Singh v. N.T.P.C. Ltd. and Ors.
2. The respondents in their counter affidavit have stated that repeated letters were sent to the petitioners to appear before the Investigating Officer and to submit a reply to the aforementioned chargesheets, but despite receiving the letters, the petitioner did not submit any reply and only demanded copies of certain documents. The respondent further submitted that vide letter dated 9.9.96, the respondents had directed the petitioner to appear at the Head Office of the Bank and peruse the relevant documents. Similar letters were written on 11.8.1997, 9.11.1997, 27.7.1998 and 6.4.2000. Inspite of receiving all the aforesaid letters the petitioner did not appear nor perused the documents and, eventually, a show cause notice dated 6.5.2003 was issued directing the petitioner to submit his reply to the chargesheets, which he failed to do so, and thereafter, another show, cause notice was issued on 27.6.2003. Since, no reply was submitted nor did the petitioner deny the charges levelled against him, consequently, the disciplinary authority passed an order terminating the services of the petitioner. The learned counsel for the respondent submitted that since the petitioner did not reply to the charge sheets, it was not necessary for the respondents to initiate an oral enquiry and prove the charges, inasmuch as the charges remained unrebutted and therefore, the charges were not required to be proved by an oral enquiry.
3. Heard Sri Satish Mandhyan, the learned counsel for the petitioner and Sri O.P. Singh, the learned counsel for the respondents.
4. In the present case, U.P. Co-operative Societies Employees' Services Regulations, 1975 [ hereinafter referred to as the Regulations ] is applicable to the case of the petitioner. Regulation 84 provides various kinds of penalties that can be imposed upon an employee. The relevant portion of Regulation 84 are quoted hereunder :
"Penalties-(i) Without prejudice to the provisions contained in any other regulation, an employee who commits a breach of duty enjoined upon him or has been convicted for criminal offence or an offence under Section 103 of the Act or does anything prohibited by these regulations shall be liable to be punished by any one of the following penalties :-
[a] censure, [b] withholding of increment, [c] fine on an employee of Category IV [peon, chaukidar, etc.], [d] recovery from pay or security deposit to compensate in whole or in part for any pecuniary loss caused to the co-operative society by the employee's conduct, [e] reduction in rank or grade held substantively by the employee, [f] removal from service, or [g] dismissal from service [iii] No penalty except censure shall be imposed unless a show-cause notice has been given to the employee and he has either failed to reply within the specified time or his reply has been found to be unsatisfactory by the punishing authority.
[iv] (a) The charge-sheeted employee shall be awarded punishment by the appropriate authority according to the seriousness of the offence :
Provided that no penalty under sub-clauses [e] [f], or [g] of clause (i) shall be imposed without recourse to disciplinary proceedings."
5. Regulation 85 of the U.P. Co-operative Societies Employees' Services Regulations, 1975 contemplates the procedure for taking a disciplinary proceeding against an employee. The relevant portion of which are being quoted hereunder :
"85. Disciplinary proceedings - [i] The disciplinary proceedings against an employee shall be conducted by the Inquiry Officer [referred to in clause (iv) below ] with due observance of the principles of natural justice for which it shall be necessary that -
(a) The employee shall be served with a charge sheet containing specific charges and mention of evidence in support of each charge and he shall be required to submit explanation in respect of the charges within reasonable time which shall not be less than fifteen days ;
(b) Such an employee shall also be given an opportunity to produce at his own cost or to cross-examine witnesses in his defence and shall also be given an opportunity of being heard in person, if he so desires ;
(c) If no explanation in respect of charge-sheet is received or the explanation submitted is unsatisfactory, the competent authority may award him appropriate punishment considered necessary."
6. From a perusal of the aforesaid Regulation, it is clear that an employee is required to be served with a charge sheet containing specific charges and the delinquent is required to submit an explanation within a reasonable time. Upon the submission of the reply, the employee was required to be given an opportunity to produce his witnesses, lead evidence and cross-examine the witnesses of the employers and would also be given an opportunity of being heard in person, if he so desires. If no explanation in respect of the charge sheet is furnished or where the reply to the charge sheet which had been furnished by the delinquent was unsatisfactory, in that event, the competent authority could award the delinquent an appropriate punishment.
7. In the present case, the petitioner contended that he had requested the employers to supply copies of various documents, which were not provided and therefore, the petitioner was denied a valuable right to consider the evidence that was being used against him. Since the documents were not supplied, the petitioner was unable to file a proper reply to the chargesheets. The petitioner submitted that proper-opportunity was not given and that the principles of natural justice had been violated. Even otherwise, the petitioner was entitled to be given a notice to appear in the oral enquiry and cross-examine the witnesses, which in the present case was not done. According to the petitioner neither an enquiry officer was appointed nor any evidence was produced and in a case where a major penalty is to be imposed, it was necessary to hold an oral enquiry and prove the charges. Since, the procedure was not followed, the order of termination was violative of the principles of natural justice.
8. The controversy involved in the present case is whether the procedure adopted by the employers in conducting the enquiry was valid or not, and whether the enquiry was in accordance with the procedure contemplated under the Regulations.
9. In Imperial Tobacco Company of India Ltd. v. Its Workmen, AIR 1962 SC-1348 the Supreme Court held that "even where the employees had withdrawn from the enquiry whether rightly or wrongly, the enquiry ought to have been completed and all the evidence should have been taken exparte."
10. In Uma Shanker Yadav v. The Registrar, Co-operative Societies and Ors., 1992 [65] FLR-675 it was held-
"It appears that the respondents were under a misconception about the law that if an accused employee does not reply to the charge sheet then he need not be given opportunity of hearing in the enquiry. In my opinion, even if it is correct that the petitioner did not submit any reply to the charge sheet, it was incumbent on the Enquiry Officer to have sent a notice to the petitioner informing him about the date, time and place of the enquiry, so that the petitioner could produce his witnesses, and cross examine the witnesses against him. Since this was not done, the Rules of natural justice have been violated."
11. In Subhash Chandra Sharma v. Managing Director and Anr., [2000] 1 UPLBEC 541, it was held-
" In our opinion after the petitioner replied to the charge sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an exparte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the chargesheet he was given a show cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."
12. In State of U.P. and Anr. v. T.P. Lal Srivastava, (1996)10 SCC 702, the Supreme Court held-
"The substratum of the result is that the appellants have not conducted any enquiry though the respondent had been avoiding to give the reply. Since the respondent had avoided to submit the reply, he has forgone his right to submit his reply. Nonetheless, the appellants are not absolved of the duty to hold an exparte enquiry to find out whether or not the charge has been proved."
13. In Subhash Chandra Sharma v. U.P. Co-operative Spinning Mills and Ors. (2001) 2 UPLBEC 1475 a Division Bench of this Court held-
"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director and Anr., [2000 ]1 UPLBEC 541 against which SLP has been dismissed by the Supreme Court on 16.8.2000."
14. Similar view was reiterated by another Division Bench of this Court in Managing Director, U.P. State Warehousing Corporation, Lucknow and Anr. v. Radhey Shyam [2004] 3 UPLBEC 2864.
15. In view of the aforesaid, it is clear in the present case, that no opportunity was given by the enquiry officer nor any date was intimated to the petitioner to appear and cross examine the witnesses. Infact, according to the petitioner, no enquiry officer was appointed and that the disciplinary authority straightaway proceeded to pass an order of termination.
16. In my view, even if no explanation has been submitted by the petitioner to the charge sheet, nonetheless, the disciplinary authority and/or the enquiry officer was required to given an opportunity to the petitioner to produce his witnesses and cross examine the witness of the employees. Since, this was not done, the procedure contemplated under Regulation 85 was violated. It may be stated here that where the petitioner delays the enquiry proceedings and does not furnish his reply to the charge sheet within a reasonable time, it was open to the employees to proceed with the enquiry exparte, but it was not open to the employer to close the enquiry and pass an order of termination. If the petitioner was refusing to cooperate with the enquiry and was refusing to file his reply to the charge sheet, it was open to the employer to proceed exparte and conduct an oral enquiry. In the present case, the procedure contemplated under Regulation 85 was not followed and therefore, the principles of natural justice was violated.
17. In view of the aforesaid, the order of termination was passed in violation of the procedure contemplated under Regulation 85 of the Regulations of 1975 and was also violative of the principles of natural justice and therefore, the order of termination cannot be sustained and is quashed. The writ petition is allowed and it is open to the disciplinary authority to proceed with the enquiry proceedings from the stage where it had been left off. In the circumstances of the case, there shall be no order as to cost.